Legal aid cuts, litigants-in-person, and exceptional funding

The court has been left with the unenviable task of finding solutions to the problem of cuts in legal aid. The court must act within the law, and while administering the law, meet its legal obligation to uphold an unrepresented party’s right to a fair hearing and respect for their family life. Those obligations derive from Article 6 and 8 of the Human Rights Act 1998 and rules governing case management.

It is still possible to secure legal aid for alleged victims of domestic violence where some evidence of DV exists to support their application for funding (see our guide on Domestic Violence). Note, funding is only available for the alleged victim, rather than the accused.

Other Sources of Funded Legal Assistance

Otherwise, the Legal Aid Agency has an Exceptional Case Funding Unit which considers applications for funding outside the normal scope of legal aid. The Lord Chancellor sets out circumstances where funding might be granted in his Exceptional Funding Guidance. In reality, even in circumstances where the Government is required under EU law to fund legal assistance, it remains extremely difficult to secure funding. Between April 2013 and March 2014, only 9 applications were approved. While things have marginally improved, between October and December 2014, only 13 of 104 applications for funding were granted (see Legal Aid Statistics Bulletin – Oct to Dec 2014). The purpose behind legal aid cuts was to reduce Government expenditure, not to improve access to justice!

Also offering legal assistance, is the Bar Pro Bono Unit. The number of applications for assistance are increasing by more than 50% a year, outstripping their resources. This has meant in the first five months of 2014, it was unable to place 49 family cases. In those cases where it can provide assistance, help is normally limited to a maximum of three days’ work (including preparation time).

The limitations of online guides

In an article last week, we mentioned the Government’s flagship online app, which supposedly provides legal information to parents. It’s broken (see our article – “Government help for separating parents… does not compute“). Other resources recommended on Government sites provide inappropriate and inaccurate answers to basic questions (an example being “How do I write a statement” bringing up information on children being statemented in school… somewhat pointless!).

While the Custody Minefield provides online resources for separating parents, for some, one-to-one assistance and legal representation remain a necessity. Where cases are exceptionally complex, require expert evidence, and where the litigant needs the assistance of a trained advocate but lacks the financial means, there remains a gaping hole in the system. Parents who face a particular nightmare include those with dyslexia or other specific learning difficulties.

Sir James Munby, President of the Family Court, has been setting out guidance in case reviews, to ensure that in the most extreme cases, the court protects litigants from the lack of alternatives provided by the Government in place of legal aid cuts. Further findings and guidance can be found in a recent judgment by Mr Justice Bellamy.

Procedure Rules: Duty of the Court

Section 1.1 of the Family Procedure Rules 2010 sets out the court’s overriding objective:

“Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

A review of three unconnected cases was conducted in Q v Q; Re B; Re C [2014] EWFC 31. All three saw the mothers being represented, but the fathers appearing as litigants-in-person. In two, there were allegations of rape, while in the third, the father was a convicted sex offender.

Findings and guidance by the court are detailed below, and at least for some, will provide some prospect of appropriate support. A step in the right direction, but there remains a long way to go.

Expert Reports

The absence of proper funding for experts and expert evidence in cases where the parties are unable to afford the cost is considered in Q v Q; Re B; Re C [2014] EWFC 31. Sir James Munby sets out that:

“If the proceedings can be resolved “justly” without requiring the expert’s attendance, then there is no reason why public funds should be spent on something which is, on this hypothesis, unnecessary. If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost… In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS.”

Sir James also refers to: Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, which found the right to an adversarial hearing was guaranteed by Article 6 of the Human Rights Act, specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.”

The involvement of an expert in a children case is prohibited unless the court is satisfied (in accordance with section 13(6) of the Children and Families Act 2014) that the expert is “necessary” to assist the court in resolving the proceedings “justly”.

It is worth noting that where a Children’s Guardian has been appointed to represent the children’s interests in proceedings, funding (at least in part) might be obtained for an expert (see our guide on Guardians-ad-Litem).

domestic violence and cases concerning children (irrespective of whether public funding is available or solicitors are involved).

Munby also states that HMCTS will fund translation services (for the translation of documents needed in court) where this cannot be funded in any other way. In Q v Q, he ordered this himself, as he did in the case Re J and S (Children) [2014] EWFC 4.

Cross examination of witnesses is often the hardest part of family law proceedings for a litigant-in-person (and the witnesses/parties being questioned).

Asking the right questions to draw out evidence and phrasing them in an appropriate way requires the person carrying out the cross examination to be articulate and have experience (at least to do this well). In practical terms, what a barrister might reasonably ask may be viewed as aggressive or bullying when the same question is posed by a litigant to his or her ex-partner (who breaks down in tears). Questions often relate to allegations, and remaining calm (while experiencing the stress of a contested hearing) can be particularly difficult for both parties. In some cases where the litigant does succeed in being calm and measured, they then run the risk of being viewed as ‘cold’. Striking the right balance is not easy.

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

At paragraph 76 of Q v Q; Re B; Re C [2014] EWFC 31, Munby considers what ’cause to be put’ means. In essence, it is that the judge will determine what questions need to be asked, and then put these to the witness him or herself:

The second thing which is unclear is this: what, in contrast to the word “put” in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate.

However, it will not always be appropriate for the judge to do the questioning. this may not be appropriate in all circumstances:

“In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8.”

He then goes on to say what should happen, in the event that exceptional legal aid funding is refused. Where a lack of legal representation seriously impinges on a person’s right to a fair trial, as last resort, the court may direct that Her Majesty’s Court and Tribunal Service picks up the cost of legal representation (see paragraph 79 of Q v Q; Re B; Re C):

‘In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.’

No order of this sort should be made except by, or having first consulted, a High Court Judge or a Designated Family Judge.

Cross Examination of Children by Litigants-In-Person

In K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, Mr Justice Bellamy considers the funding of cross examination for an unrepresented father accused of sexual assault by the mother’s oldest daughter from a different relationship. The police had investigated, but decided to take no further action. In the interim, the mother had been awarded residence, and the father had supervised contact with his two children. The mother sought to rely upon the allegations.

The judgment considers:

Who should cross-examine the child?

Does the court have the power to order Her Majesty’s Courts and Tribunals Service to pay for legal representation for the father limited to cross-examination of the child?

The question did not arise as to whether the court could prevent an alleged perpetrator from cross-examining his child victim, as the father had no wish to do this himself (albeit did see the need for the child’s evidence to be tested in court). Guidance given by the Family Justice Council in December 2011 states:

17. A child should never be questioned directly by a litigant in person who is an alleged perpetrator…
21. All advocates have a responsibility to manage the questioning of a child witness fairly. However the ultimate responsibility for ensuring that the child gives the best possible evidence in order to inform the court’s decision rests with the tribunal…’

The court concluded it was undesirable for the father to personally cross-examine his alleged victim.

While the father was financially ineligible to apply for legal aid, the judge dismissed the argument that whether or not he retained legal counsel was his personal choice. The judge reasonably concluded that:

Whereas inability to pay for legal representation is demonstrated by having a disposable income below the maximum allowed by the Regulations, it does not follow that ability to pay is demonstrated by having a disposable income above the maximum provided for by the Regulations.

Since he was financially ineligible for legal aid, he could not apply for legal representation via the Legal Aid Authority’s Exceptional Case Funding Unit. The Bar Pro Bono Unit had attempted to find council, but as mentioned above, the service is stretched and counsel could not be found. Even had a Guardian been appointed and the two younger children separately represented, it was likely inappropriate for the Children’s council to cross examine the alleged victim on the father’s behalf. As no alternative source of funding existed, to ensure the right to a fair hearing, the judge ordered Her Majesty’s Court and Tribunal Service to bear the cost.

The appropriateness of the judge carrying out the questioning himself was also considered, and disregarded:

“Y’s allegations against the father are pivotal to determining welfare issues in respect of K and H and in particular the issue of the nature and extent of their future contact (if any) with their father. In determining that issue K and H’s welfare must be the court’s paramount consideration. In arriving at a decision about the children’s welfare interests the court must consider the factors set out in the welfare checklist in s.1(3) of the Children Act 1989. In this case a finding that the father has sexually abused Y would be relevant in assessing both risk of harm (s.1(3)(e)) and the father’s capacity to meet the children’s needs (s.1(3)(f)). In such circumstances, can it seriously be contended that it would be ‘appropriate’ for the judge, who must determine the facts, to cross-examine the key witness upon the reliability of whose evidence the fact-finding exercise so heavily depends? In answering that question I bear in mind that that question engages not only the father’s Art 6 and Art 8 rights but also those of K and H and arguably those of Y, too.”

In Conclusion

The inequities caused by the cuts to legal aid (and those which existed before) is in part being addressed and confronted by the judiciary. The Government is concerned with budget cuts before its legal responsibilities under the Human Rights Act.

Lord Justice Denning once teased a colleague at a dinner… “Unlike my brother judge here, who is concerned with law, I am concerned with justice.” It seems a bit of the old Denning spirit has come back to haunt the Government. We expect certain Ministers are seeking an exorcist, as we type…

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